Harkins v Butcher

In *Harkins v Butcher*, the New South Wales Court of Appeal considered a dispute arising from the sale of a property. The purchasers, Mr. and Mrs. Butcher, alleged that the vendor, Mr. Harkins, had made misleading and deceptive representations concerning the property's dimensions. Specifically, an incorrect survey diagram was incorporated into a brochure provided by the vendor's estate agents. The purchasers sought specific performance of the contract, or alternatively, repayment of their deposit and damages.

The Court was required to determine several key legal issues. These included whether the representation made by the estate agents, by incorporating the incorrect survey diagram, constituted misleading or deceptive conduct under the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Further, the Court had to consider whether the purchasers' failure to rescind the contract for innocent misrepresentation barred them from seeking relief under section 55(2A) of the *Conveyancing Act 1919* (NSW) or under the *Trade Practices Act*. The Court also had to address the purchasers' claim for fraud and the implications for costs.

The Court held that the representation made by the estate agents, by incorporating the survey diagram, was not a representation as to the truth of the statement contained within it, but rather a representation that the agents believed it to be accurate. Consequently, it did not amount to misleading or deceptive conduct by the vendor under section 52 of the *Trade Practices Act*. However, the Court found that the purchasers were entitled to relief under section 55(2A) of the *Conveyancing Act*, which allows for the repayment of a deposit where a contract is rescinded due to innocent misrepresentation, even if the right to rescind has been lost. The Court also found that the purchasers' unsuccessful fraud claim meant they were liable for the costs associated with that issue.

In *Harkins v Butcher*, the appeal by the purchasers was allowed in part, with orders made regarding the repayment of the deposit. The vendor's appeal was dismissed with costs.